IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003433 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his retired pay computation under the Public and Community Service (PACS) Program portion of the Temporary Early Retirement Authority (TERA). 

2.  The applicant states –
 
* he retired under the TERA on 28 February 1994
* he retired under TERA with over 17, but less than 20 years of total active duty service
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he qualified for an adjustment of his retired pay at age 62 per Fiscal Year (FY) 1993 National Defense Authorization Act (NDAA) (Public Law 102-484), section 4464  
* he believed that as a retiree who would work in some public service capacity, he could apply some of his post-retirement civilian employment towards his military retired pay at age 62 (X August 2013)
* he erroneously thought he had to work approximately 5 years or more in public service and be at least 62 year of age or older before seeking an adjustment of his retired pay
* he misread/misunderstood the provisions outlined in the program
* when he applied to the Defense Finance and Accounting Service (DFAS) he was advised that the TERA program had expired in 2008 and the Defense Manpower Data Center (DMDC) is not authorized to accept any new PACS applications
* he requests correction to his record to show the PACS adjustment to his retired pay based on his number of years employed in public service and if applicable, to apply any credit up to the time he would have completed 20 years of active military service 

3.  The applicant provides:

* DFAS information sheet
* King County Adult and Juvenile Detention Center employment verification letter
* Washington Corrections Center for Women employment verification letters
* two DD Forms 214  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on X August 1951.  He served on active duty in an enlisted status from 5 January 1977 through 17 March 1986 and as a warrant officer from 18 March 1986 through 28 February 1994. 

3.  The applicant was honorably retired in the rank/pay grade of chief warrant officer two/W-2, by reason of voluntary early retirement.  His DD Form 214 shows he completed a total of 17 years, 1 month, and 26 days of active service and 5 days of inactive service.  Item 18 (Remarks) confirms the applicant was retiring under the TERA provisions of the law and that he may qualify for an adjustment of his retired pay at age 62.

4.  The applicant provided an employment verification letter from the Department of Corrections, Washington Corrections Center for Women, Gig Harbor, WA dated 9 January 2015.  The letter states he began employment on 6 June 1994 as a correctional officer.  He transferred to another state facility and then was 
promoted to a correctional mental health counselor and returned to the facility at Gig Harbor on 16 June 1996.  He resigned his position on 13 June 1998.  He provided a second letter from King County, Department of Adult and Juvenile Detention, Seattle, WA dated 6 January 2015.  This letter verifies he was employed as a corrections officer at this facility from 6 June 1998 through 
10 February 2003.

5.  An advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff, G-1.  The Reserve Incentives Program Manager, Enlisted Accessions Division, recommends granting the applicant relief by adjusting his retired pay at age 62 based on his period employment that is deemed qualifying and that occurred between the applicant's retirement date and his Enhanced Retirement Qualification Period (ERQP) date.  He states the applicant –

* retired under TERA with 17 years, 1 month, and 26 days of active federal service
* worked in an approved position for 2 years, 11 months, and 4 days to reach 20 years of combined service
* had an ERQP date of 4 January 1997
* did not apply within the specified guidelines and cutoff dates until after the ERQP
* had employment with the King County Adult and Juvenile Detention Center and Washington Corrections Center for Women that meets the guidelines laid out in the applicable TERA statutes of employment with a public service entity (Federal, State, or local government)
* had a period of employment that meets the criteria for the period from 
6 June 1994 to his ERQP date of 4 January 1997 – 2 years, 8 months, and 28 days 

6.  A copy of the advisory opinion was forwarded to the applicant.  There is no indication he responded.

7.  The DFAS website for TERA (as it applies to the applicant's period of service) provides the following:

	a.  TERA is a discretionary authority, not an entitlement.

	b.  TERA authorized members with over 15 but less than 20 years of total active duty service to apply for early retirement.  The opportunity to retire under TERA ended in September 2002.  

	c.  The Public and Community Service (PACS) Program allowed TERA retirees to apply post-retirement employment with certain pre-approved employers toward their military retired pay at age 62.

	d.  PACS credit was authorized up to the time the members would have met 20 years of military service had they remained on active duty.  This period was called the ERQP.  The timeline to submit PACS applications to the DMDC ended 1 year to the day after the member's ERQP expired.

	e.  The program officially expired in August 2008 (one year after the last official TERA recipient’s ERQP expired).  DMDC is not authorized to accept any new PACS applications.  (DMDC was the proponent agency responsible for the administration of this program.)
   
8.  Title 10, U.S. Code, section 3914, provides the legal authority for the retirement of enlisted members between 20 and 30 years.  During the period 23 October 1992 to 1 October 1995, TERA provisions were added that allowed the retirement of service members with at least 15 but less than 20 years.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant qualified for participation in the TERA PACS Program; however he had to provide the required documentation of his qualifying post-service employment at the time he reached his ERQP, 4 January 1997.  

2.  The applicant states he misunderstood when he had to file for the PACS Program readjustment.  It was his understanding that he could not apply until after he was 62, which he now is.  

3.  In accordance with the advisory opinion, it is equitable to show the applicant qualified for and properly applied to receive retirement longevity for the period from 6 June 1994 to his ERQP date of 4 January 1997 - 2 years, 8 months, and 28 days.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant qualified for and properly applied to receive retirement longevity for the period from 6 June 1994 to his ERQP date of 4 January 1997 (2 years, 8 months, and 28 days) with retroactive entitlement to the revised retired pay calculation effective the date he turned 62.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an earlier date of readjustment of his retired pay.  



      _______ _   x_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20150003433



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ABCMR Record of Proceedings (cont)                                         AR20150003433



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